Public Importance and Successful-Party Costs: The Limits of Exceptional Relief in a Supreme Court Dissent

1. Introduction

This judgment addresses when unsuccessful litigants may obtain exceptional treatment on costs because their proceedings have resolved legal questions of wider importance. It arose from Revenue debt-recovery proceedings in which the taxpayer defendants unsuccessfully challenged the legality of Revenue’s arrangements for paying its solicitors.

The substantive litigation concerned allegations that conditional uplift fees and “no foal no fee” arrangements were champertous or otherwise unlawful. The supplied judgment, however, is concerned principally with who should bear the costs after those challenges failed.

Collins J disagreed with the costs orders proposed by Hogan J. His central position was that the systemic importance of an appeal does not, without more, justify displacing the statutory presumption that an entirely successful party receives its costs. He considered the defendants’ exclusively private objectives, lack of a substantive defence to the tax debts, and persistence in groundless fraud allegations powerful reasons against exceptional relief.

This distinction is essential: the text is a dissent on costs, not the Court’s majority judgment. Its proposed application of the costs principles did not command the majority. The precise majority costs allocation cannot be reconstructed from this extract alone.

2. Background and Procedural History

The proceedings concerned substantial unpaid tax arising from assessments dating back to 2015, principally relating to rental income and capital gains on a property portfolio, together with interest and penalties.

1. The taxpayers unsuccessfully appealed the assessments to the Appeals Commissioners.
2. Their attempt to require the Commissioners to state a case to the High Court also failed.
3. The assessments consequently became final and conclusive.
4. Final demands issued in October 2021, but payment was not made.
5. Revenue commenced summary proceedings and ultimately succeeded in the High Court, Court of Appeal and Supreme Court.

Collins J described the defence based on Revenue’s solicitor-fee arrangements as opportunistic and unmeritorious. In his assessment, neither defendant had any substantive defence to the underlying liabilities, yet Revenue had been required to litigate through three courts to obtain judgment.

The defendants also alleged fraud against Revenue. Quinn J rejected those allegations in the High Court. They were repeated in the Court of Appeal and attracted a separate, strongly critical judgment from O’ Moore J. The defendants subsequently sought to maintain the allegations in the Supreme Court but were not permitted to do so.

The Attorney General and the Law Society of Ireland participated as amici curiae. The supplied text does not describe their submissions.

3. Summary of Collins J’s Conclusions

• The statutory starting point favoured Revenue: it had been entirely successful and was presumptively entitled to its costs under section 169(1) of the Legal Services Regulation Act 2015.
• The proceedings were not, in his view, public interest proceedings: they were ordinary debt-recovery proceedings involving arguments that could equally have arisen between private litigants.
• Even a public-interest classification would not determine costs: departure from the statutory rule required a further, contextual justification.
• The defendants’ conduct weighed heavily against relief: particularly their persistence in unsupported fraud allegations while legally represented.
• General public importance was insufficient: treating that feature as decisive would undermine the statutory rule across much of the Supreme Court’s appellate work.
• An award to unsuccessful parties required exceptional justification: Collins J found none capable of satisfying the “most exceptional” threshold identified in the authorities.

He would have left the High Court and Court of Appeal costs orders against the defendants undisturbed. Although ordinarily inclined to award Revenue its Supreme Court appeal costs as well, he would have made no order as to those costs because Revenue had offered to bear its own costs in that Court.

4. The Statutory Framework: A Presumption, Not an Unrestricted Discretion

Section 169(1) of the Legal Services Regulation Act 2015 provides the central framework. Where a party is entirely successful, that party is presumptively entitled to its costs, although the court may “order otherwise”.

Collins J treated both elements as important. The discretion is real, but so is the legislative choice establishing the default entitlement. A court should therefore not approach costs as though every outcome were equally available without reference to the successful party’s statutory position.

The provision also identifies relevant considerations, including:

• the parties’ conduct before and during the proceedings, under section 169(1)(a); and
• the manner in which they conducted all or any part of their cases, under section 169(1)(c).

Collins J further noted that Order 99, rule 3 of the Rules of the Superior Courts requires regard to those matters whenever the court considers making a costs award. Litigation conduct was therefore part of the applicable legal framework, not merely an incidental criticism of the defendants.

5. Precedents Cited and Their Influence

5.1 Little v The Chief Appeals Officer [2024] IESC 53

Little v The Chief Appeals Officer supplies the principal framework for the judgment. Collins J regarded it as carefully balancing the statutory entitlement to costs against the judicial power to depart from that entitlement in public interest proceedings.

He relied on several distinct aspects of that decision:

• Respect for legislative policy: paragraphs 48–49 recognise the significance of the choice embodied in section 169(1).
• A contextual assessment: the relevant factors structure discretion but do not create a mechanical checklist.
• Public importance is insufficient by itself: paragraph 35(i) prevents that feature alone from determining costs.
• Private motivation has a qualified role: paragraph 34(d) indicates that self-interest does not necessarily exclude public-interest classification, while paragraph 35(ii) makes it relevant to the discretionary assessment.
• Costs for an unsuccessful party are especially exceptional: paragraph 71 confines such awards to “the most exceptional of circumstances”.

Collins J also referred to the exceptional cases discussed at paragraphs 62–65 of Little, finding no meaningful resemblance between those cases and the present proceedings. The supplied judgment does not identify those individual authorities, so their facts cannot be examined from this text.

The important analytical distinction is between qualifying as public interest proceedings and deserving a particular costs order. Even if the former is established, the latter requires separate justification.

5.2 Godsil v Ireland [2015] IESC 103, [2015] 4 IR 535

Collins J cited paragraphs 19–22 of Godsil v Ireland as identifying the considerations underpinning the legislative policy that successful parties ordinarily recover their costs.

Its function here is foundational: it supports treating the statutory default as a substantive policy choice rather than a procedural formality. The judgment does not reproduce the relevant discussion in Godsil v Ireland, so a more detailed account of that authority would go beyond the supplied material.

5.3 Lee v Revenue Commissioners [2021] IECA 114

Lee v Revenue Commissioners provided the principal comparison. There, the Court of Appeal ultimately declined to award costs to the unsuccessful applicant. The dispute concerned the precise limits of the Appeal Commissioners’ jurisdiction, an issue Collins J regarded as particularly important to Revenue.

He distinguished the present appeal on two grounds. First, clarification of the solicitor-fee arrangements was not of particular practical benefit to Revenue: it could adopt different arrangements and had already done so. Secondly, the need for clarification could not be attributed to legislative inadequacies properly associated with Revenue.

The comparison demonstrates the importance of examining who benefits from clarification and why clarification was needed. General legal interest is not necessarily equivalent to a special institutional benefit capable of supporting exceptional costs treatment.

5.4 Minister for Communications, Energy and Natural Resources v Wymes [2021] IESC 63

Collins J cited paragraph 7 of this decision as an example of Supreme Court practice confirming that the presence of an issue of general public importance does not itself justify departure from ordinary costs rules.

5.5 MD (A Minor) v Board of Management of a Secondary School (No 2) [2024] IESC 18

Paragraph 10 of this decision was cited for the same proposition. Together, these two authorities reinforce the distinction between an appeal’s importance for the Supreme Court’s constitutional role and the separate question of responsibility for its costs.

5.6 The Earlier Decisions in These Proceedings

Quinn J’s High Court judgment, [2024] IEHC 15, supplied the procedural background and characterised the fraud allegations as “unstateable”. O’ Moore J’s Court of Appeal judgment, [2025] IECA 77, described the fraud claim as “just hopeless” and one which “should never have been made”.

These judgments mattered primarily as evidence of litigation conduct. Repetition of allegations after clear judicial rejection strengthened Collins J’s conclusion that the defendants should not receive favourable discretionary treatment on costs.

6. Analysis of the Legal Reasoning

6.1 A Public Claimant Does Not Automatically Create Public Interest Proceedings

Collins J rejected the proposition that the proceedings acquired a public-interest character simply because Revenue was the claimant. The legal objection concerned fee arrangements said to be impermissible for litigants generally, not arrangements allegedly unlawful because Revenue was a public authority.

The same objection could have arisen in bank debt litigation or, concerning “no foal no fee” arrangements, an ordinary personal injury action. Revenue’s public status was therefore, in his analysis, irrelevant to the disputed arrangements’ legality.

This is a functional approach: the court should examine the issue being litigated rather than classify proceedings by the identity of one party.

6.2 General Public Importance Cannot Become an Automatic Costs Exemption

Collins J emphasised that most Supreme Court appeals involve issues of general public importance. Giving that characteristic decisive weight would therefore risk turning a supposed exception into the usual rule for appeals before the Court.

His concern was institutional as well as practical. Judicial discretion must operate within the statutory framework; it should not effectively replace the Oireachtas’s chosen starting point with a different default for Supreme Court litigation.

6.3 Litigation Conduct Must Remain Central

The defendants’ repeated fraud allegations were especially significant. Collins J considered their persistence particularly serious because they had legal representation throughout. Their inability to advance those allegations in the Supreme Court did not erase the fact that they had sought to maintain them.

The reasoning rejects the idea that a legally significant issue necessarily outweighs improper litigation conduct. A party seeking exceptional costs treatment remains accountable for how it has prosecuted or defended the case.

6.4 Private Benefit Was Relevant but Not Automatically Disqualifying

Collins J expressly accepted that self-interest alone need not prevent proceedings from being classified as public interest litigation. Nevertheless, these defendants had pursued their challenge solely to avoid personal tax liabilities, not to vindicate a public right.

This distinction prevents two opposite errors: excluding every privately motivated case from public-interest consideration, and treating private motivation as irrelevant once a case raises a wider legal issue.

6.5 Confirming Established Law Is Not Necessarily Exceptional Clarification

On the substantive fee issues, Collins J considered section 149(1) of the 2015 Act, re-enacting section 68 of the Solicitors (Amendment) Act 1994, a complete answer to the challenge to conditional uplift fees.

As to “no foal no fee” arrangements, he accepted that a successful challenge would have had major consequences for litigation practice. But he distinguished the potential disruption of a successful challenge from the actual legal contribution of an unsuccessful one. In his view, the Court had principally confirmed the long-established understanding that such arrangements were permissible.

That distinction limits the argument that raising a far-reaching challenge necessarily earns costs protection. A claim may threaten substantial disruption without producing a correspondingly substantial clarification of uncertain law.

6.6 The Beneficiaries of Clarification and the Burden of Paying

Hogan J identified litigants, practitioners and the legal system as beneficiaries of the decision. Collins J questioned why those diffuse benefits should require Revenue—and ultimately the Exchequer and compliant taxpayers—to fund the unsuccessful defendants’ costs.

His objection was not that wider benefits could never matter. It was that their existence did not sufficiently explain the proposed transfer of costs in these particular proceedings.

6.7 Withholding Costs and Awarding Costs to a Loser Are Different Steps

The judgment distinguishes between declining to award a successful party its costs and requiring it to pay an unsuccessful opponent’s costs. The latter is the more exceptional intervention.

Collins J’s own proposed order illustrates the distinction. Revenue’s concession justified each side bearing its own Supreme Court costs; it did not, in his view, justify an affirmative award to the unsuccessful defendants.

7. Complex Concepts Simplified

Costs follow the event

The usual approach that the successful party recovers litigation costs from the unsuccessful party, subject to statutory qualifications and judicial discretion.

Public interest proceedings

Proceedings with a sufficient public-interest dimension to engage special consideration of costs. Raising an important legal question does not automatically determine either classification or entitlement to relief.

Champerty

A form of improper litigation support associated with an agreement to share in the proceeds. The defendants alleged that Revenue’s fee arrangements were unlawful on this or related grounds; those challenges failed.

“No foal no fee”

An arrangement under which a solicitor’s entitlement to a fee depends on success. Collins J treated its permissibility as a long-established feature of Irish litigation practice.

Conditional uplift fee

A fee arrangement involving an increase payable upon an agreed condition, generally success. Its legality must be assessed under the relevant statutory provisions rather than assumed to follow from objections to other funding arrangements.

Final and conclusive assessment

An assessment that has become legally settled following the relevant challenge procedures. Here, the fee-arrangement defence was not a substantive answer to the tax liabilities.

No order as to costs

Generally, each side bears its own costs of the relevant stage. It does not mean that the unsuccessful party receives payment from its opponent.

Dissent

A judge’s disagreement with the majority’s conclusion. It may be persuasive in later cases but is not itself the binding majority determination.

8. Potential Impact

The dissent offers a structured argument for restraint in public-interest costs applications. Its likely persuasive value lies in requiring courts and litigants to distinguish several questions that can otherwise become conflated:

• Does the case genuinely have a public-interest character?
• Do its particular circumstances justify departing from the successful party’s statutory entitlement?
• Does the relief sought merely withhold costs, or require payment to an unsuccessful litigant?
• How do the parties’ objectives and litigation conduct affect that assessment?

For public authorities, the reasoning supports the proposition that involvement in an important appeal does not automatically make them responsible for financing unsuccessful challenges. For litigants, it warns that legal significance cannot safely be treated as insulation from adverse costs, especially where unsupported allegations have been maintained.

Its limits are equally important. Collins J did not deny the legitimacy of exceptional public-interest costs relief, nor did he establish a rule that private motivation or unsuccessful litigation necessarily excludes it. His disagreement concerned whether the circumstances justified relief here. As a dissent, that application must not be presented as the Court’s binding holding.

9. Conclusion

Collins J’s central message is that public importance informs costs discretion but does not displace the statutory starting point. Courts must consider the actual proceedings, the parties’ conduct and objectives, and the precise departure being requested.

In his view, unsuccessful attempts to resist settled tax liabilities, compounded by persistent groundless fraud allegations, did not warrant exceptional protection or an award of costs against Revenue. The dissent’s broader significance lies in its insistence that public-interest costs jurisdiction remain a carefully justified exception rather than an automatic consequence of legally important litigation.